03/12/2026: Overbroad Confidentiality and Non-Disparagement Rules Remain Illegal
Plus two summary judgments and decisions directing elections.
Wuji World Inc. D/B/a Off Broadway Car Wash, 374 NLRB No. 59, 29-CA-319174 (Published Board Decision)
The Board granted the General Counsel’s motion for default judgment against Wuji World Inc., an Elmhurst, New York car wash, after the employer failed to comply with the terms of an informal settlement agreement resolving Section 8(a)(5) and (1) charges.
The underlying dispute arose from Wuji World’s 2023 acquisition of a predecessor business, D&K Star LLC, whose car wash employees had been represented by the Retail, Wholesale and Department Store Union, UFCW under successive collective-bargaining agreements. Because Wuji World reopened the business in substantially unchanged form and retained a majority of D&K’s employees, the Board found it to be a successor employer obligated to recognize and bargain with the Union under Section 9(a) of the NLRA. The employer refused repeated bargaining requests beginning in April 2023.
The parties entered into an informal settlement agreement in early 2024 requiring the employer to bargain on a structured schedule (at least two days per week, six hours per session), post and read a Notice to Employees, and submit monthly written progress reports to the Region. The agreement included a standard noncompliance clause permitting the General Counsel to seek default judgment if the employer failed to cure any breach within 14 days of notice.
After the employer failed to bargain as required, submit progress reports, or return completed certification forms, the Regional Director issued the required 14-day notice in April 2024. The employer still did not comply, leading to reissuance of the complaint in October 2024 and the filing of the motion for default judgment. The employer did not respond to the Board’s show-cause order, leaving all allegations uncontested.
The Board’s remedy is limited to enforcing the unmet terms of the settlement agreement — structured bargaining, monthly progress reports, and a sworn compliance certification — rather than imposing a “full remedy.” The Board declined to award make-whole relief or a Mar-Jac Poultry Co. certification-year extension because the General Counsel’s motion, despite technically preserving those options under the settlement’s default clause, was construed as seeking only enforcement of the agreement’s existing terms rather than additional relief.
Significant Cases Cited
U-Bee, Ltd., 315 NLRB 667 (1994): Under a settlement agreement’s noncompliance clause, the Board may deem all complaint allegations admitted and enter findings of fact without a hearing.
Continental Packaging Corp., 327 NLRB 400 (1998): Where a respondent refuses to produce subpoenaed jurisdictional documents, the General Counsel need only establish statutory jurisdiction to support assertion of Board jurisdiction.
Mar-Jac Poultry Co., 136 NLRB 785 (1962): The Board may extend the certification year as a remedy when an employer’s refusal to bargain has prevented the union from demonstrating its majority status.
Benchmark Mechanical, Inc., 348 NLRB 576 (2006): The Board will not, sua sponte, impose remedies beyond those requested by the General Counsel in a default judgment motion.
Opal Care, 368 NLRB No. 103 (2019): A General Counsel’s motion to “comply with the terms of a settlement” is construed as a request to enforce unmet settlement terms, not as a request for a full unfair labor practice remedy.
Portillo's Hot Dogs, LLC, 374 NLRB No. 58, 13-CA-354045 (Published Board Decision)
The Board granted summary judgment against Portillo’s Hot Dogs in a straightforward refusal-to-bargain case under Section 8(a)(5) and (1) of the NLRA. The Ironworkers union had been certified as bargaining representative of production and maintenance employees at the company’s Addison, Illinois food production facility following an election in April 2023, but Portillo’s refused to bargain after the Board denied its request for review of the certification in August 2024.
Portillo’s challenged the certification by arguing the union had improperly promised employees work permits, green cards, and citizenship in exchange for their votes. The Board rejected that argument as having been raised and resolved in the prior representation proceeding, and declined to revisit it in the unfair labor practice context under the rule of Pittsburgh Plate Glass Co. v. NLRB. The company also raised several constitutional defenses — including removal protections for Board members and ALJs, separation of powers, and a Seventh Amendment challenge to the Board’s adjudication of private rights — all of which the Board rejected as unsupported and meritless.
On remedy, the Board declined the General Counsel’s request to impose make-whole relief for employees’ lost opportunity to bargain, reaffirming the longstanding bar established by Ex-Cell-O Corp. and citing its recent decision in Longmont United Hospital. Member Prouty dissented on that point alone, urging the Board to overrule Ex-Cell-O and award economic make-whole relief to affected employees. The Board ordered Portillo’s to bargain on request and tolled the certification year until good-faith bargaining begins.
Significant Cases Cited
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941): Established that representation issues that were or could have been litigated in a prior representation proceeding cannot be relitigated in a subsequent unfair labor practice case.
Ex-Cell-O Corp., 185 NLRB 107 (1970): Held that the Board lacks authority to impose make-whole monetary remedies on employers for employees’ lost opportunity to bargain resulting from an unlawful refusal to bargain.
Longmont United Hospital, 374 NLRB No. 50 (2026): Reaffirmed Ex-Cell-O’s bar on make-whole relief in test-of-certification refusal-to-bargain cases.
Mar-Jac Poultry Co., 136 NLRB 785 (1962): Established that the one-year certification bar period begins running only from the date the employer commences good-faith bargaining, not from the certification date itself.
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937): Upheld the constitutionality of the NLRA and rejected the argument that Board adjudication of labor disputes violates the Seventh Amendment right to jury trial.
Honeywell International Inc., JD-16-26, 09-CA-327389 (ALJ Decision)
ALJ Christal J. Key found that Honeywell violated Section 8(a)(1) of the NLRA by maintaining overbroad provisions in two agreements: an Employment Agreement required as a condition of hire, and a Severance Agreement proffered to terminated employees.
Employment Agreement
Honeywell required employees to sign a confidentiality agreement prohibiting disclosure of “confidential information” both during employment and for two years after termination. The ALJ applied the Stericycle two-step test, finding that the provision’s sweeping definition of confidential information — including “knowledge, data, information,” “compilations of data,” “financial information, operating and cost data,” and “the identities and competencies of Honeywell’s employees” — would reasonably chill employees from discussing wages, working conditions, or coworker identities with a union or fellow employees. The ALJ then found Honeywell failed to rebut the presumption of unlawfulness because, while it established a legitimate business interest in protecting proprietary product information, the rule swept far more broadly than necessary to serve that interest. The absence of any savings language in the Employment Agreement was also noted; Honeywell’s argument that savings language in its Severance Agreement cured the defect failed because employees are bound by the Employment Agreement independently of whether they ever receive or sign the Severance Agreement.
Severance Agreement
The ALJ analyzed three provisions under McLaren Macomb: (1) a confidentiality clause barring employees from disclosing the agreement’s terms to other employees or third parties; (2) a cooperation and nondisclosure clause requiring employees to notify Honeywell before providing information to any non-governmental third party regarding potential legal claims, and to permit Honeywell’s representative to be present during any such communications; and (3) a non-disparagement clause broadly prohibiting statements tending to create a negative impression of Honeywell, its management, culture, or employees, with no temporal limitation. All three were found unlawful. The ALJ rejected Honeywell’s argument that the agreement’s savings clause — printed in bold on page 4, expressly preserving NLRA-protected activity — cured the overbreadth. The savings language failed because the restrictive provisions directly contradicted it, and because rank-and-file employees cannot be expected to resolve such contradictions through legal analysis. The ALJ cited Stericycle‘s standard that rules are read from the perspective of a non-lawyer employee. The cooperation clause was particularly problematic because it effectively required Honeywell’s involvement before employees could assist coworkers, unions, or attorneys investigating employment claims, subject to significant financial penalties including attorney’s fees.
On remedy, the ALJ declined to order backpay for charging party Stephen Ferguson, finding he would not have signed even a lawful severance agreement given that he was simultaneously pursuing a race discrimination claim over his termination. The remedy is limited to rescission of the unlawful provisions, notice to affected employees, and posting.
Significant Cases Cited
McLaren Macomb, 372 NLRB No. 58 (2023): The Board held that severance agreements conditioning benefits on overbroad confidentiality and non-disparagement provisions violate Section 8(a)(1), regardless of whether the employee accepts or declines the agreement.
Stericycle, Inc., 372 NLRB No. 113 (2023): The Board established a two-step test for evaluating facially neutral work rules, presuming a rule unlawful if it has a reasonable tendency to chill Section 7 rights, with the burden on the employer to show a legitimate business interest that cannot be advanced by a more narrowly tailored rule.
Double Eagle Hotel & Casino, 341 NLRB 112 (2004): The Board found that a workplace rule prohibiting employees from communicating confidential or sensitive company information to non-employees without management approval violated Section 8(a)(1).
Quicken Loans, Inc., 361 NLRB 904 (2014): The Board held that employees have a Section 7 right to share employee information, including lists, rosters, and schedules, with a labor union.
U-Haul Co. of California, 347 NLRB 375 (2006): The Board held that savings language purporting to preserve legal rights does not cure overbroad restrictions on protected conduct when the language requires employees to apply legal analysis to understand their rights.
Great Pacific Iron Works, 02-RC-381600 (Regional Election Decision)
Region 2 Regional Director John D. Doyle, Jr. issued a Decision and Direction of Election on March 11, 2026, ordering a union election among approximately 20 employees at the New York City retail store of Great Pacific Iron Works, an outdoor apparel and accessories retailer. The petitioning union is the Retail Wholesale Department Store Union (RWDSU).
The decision turns largely on a procedural preclusion ruling. The employer was required to file and serve a Statement of Position by noon on March 2, but filed it at 12:17 p.m. and served it on the petitioner at 12:36 p.m. — both untimely. Under Section 102.66(d) of the Board’s Rules, a party that misses the Statement of Position deadline is precluded from raising any issue at the pre-election hearing other than the Board’s statutory jurisdiction. As a result, the employer was barred from litigating its contention that the Team Leader classification consists of statutory supervisors under Section 2(11) of the NLRA. The Regional Director affirmed that preclusion ruling and found that no litigable issues remained.
On the appropriate unit question, the Regional Director found the petitioned-for unit — all full-time and regular part-time Customer Experience Guides and Team Leaders at the Crosby Street location — appropriate as a wall-to-wall, single-facility unit. Relying on the Board’s longstanding presumption that plant-wide and store-wide units are appropriate, and noting that the only excluded classifications were those typically excluded by policy or statute (supervisors, guards, professionals, and office clericals), the Regional Director directed an election in the unit as proposed.
Significant Cases Cited
Williams-Sonoma Direct, Inc., 365 NLRB 111 (2017): Established that a Regional Director may reject an employer’s Statement of Position and preclude litigation of issues raised therein when the SOP is not timely served, and reaffirmed the Board’s obligation to find record support for the appropriateness of a proposed unit before directing an election.
Brunswick Bowling Products, LLC, 364 NLRB 1233 (2016): Held that a Statement of Position filed on time but served only hours late is still untimely, establishing a strict standard for SOP service deadlines.
Allen Health Care Services, 332 NLRB 1308 (2000): Affirmed that the Board has a statutory obligation to determine the appropriate bargaining unit and must have record evidence supporting unit appropriateness before directing an election.
Kalamazoo Paper Box Corp., 136 NLRB 134 (1962): Established the presumption that a plant-wide bargaining unit is appropriate under the NLRA and that a community of interest inherently exists among employees in such a unit.
May Department Stores Co., 97 NLRB 1007 (1952): Recognized the store-wide unit as presumptively appropriate in the retail industry, describing it as the “optimum unit” for collective bargaining purposes.
Doctors Hospital of Manteca, Inc. D/B/a Doctors Hospital of Manteca, 32-RC-379650 (Regional Election Decision)
NLRB Region 32 Regional Director Christy J. Kwon issued a Decision and Direction of Election on March 9, 2026, directing an Armour-Globe self-determination election among approximately seven Emergency Department Technicians (EDTs) at Doctors Hospital of Manteca (DHM), a facility owned by Tenet Healthcare. The union, SEIU-United Healthcare Workers West, petitioned to add the EDTs to an existing multi-facility, multi-employer bargaining unit spanning seven Tenet hospitals in California.
The employer argued the petition should be dismissed on three grounds: the existing unit is non-cognizable because it is a nonconforming unit under the Board’s Health Care Rule (29 C.F.R. § 103.30); the EDTs lack a community of interest with the existing unit; and they do not constitute a distinct and identifiable segment. The Regional Director rejected all three arguments.
On the nonconforming unit question, the Regional Director relied on St. Vincent Charity Medical Center and Rush University Medical Center v. NLRB to confirm that an Armour-Globe election may be directed even where the existing unit already fails to conform to the Health Care Rule, because such a proceeding adds employees to an existing unit rather than creating an additional unit.
On distinctness, the Regional Director found the EDTs constitute a clearly defined group sharing the same job classification, department, duties, and supervision — and noted that the existing CBA already includes EDTs at two other signatory hospitals, confirming a rational basis for treating them as a discrete segment.
On community of interest, the Regional Director applied the multi-factor test from United Operations, Inc. and found several factors weighed in favor of inclusion. Job duties overlapped substantially with those of monitor technicians and CNAs, both already in the unit. Functional integration was found to be high: EDTs and unit employees perform different steps of the same patient care process and necessarily depend on one another — for example, phlebotomists draw blood, EDTs transport specimens, and phlebotomists test them. Contact was near-constant, with EDTs interacting with unit employees on nearly every routine task. Interchange was regular, with EDTs substituting as monitor technicians approximately weekly and performing patient sitting duties (a bargaining unit role) roughly monthly. Common supervision, shared terms and conditions, and bargaining history — including the CBA’s existing coverage of EDTs at other Tenet hospitals — further supported inclusion. The skills and training factor was neutral due to an undeveloped record. The Regional Director concluded that adding DHM’s EDTs to the existing unit would move the unit closer to Health Care Rule conformity and avoid unnecessary unit proliferation.
Significant Cases Cited
St. Vincent Charity Medical Center, 357 NLRB 854 (2011): An Armour-Globe self-determination election may add employees to an already nonconforming unit under the Health Care Rule, and nonprofessionals at an acute care hospital have a presumptive community of interest with all other nonprofessionals.
United Operations, Inc., 338 NLRB 123 (2002): Sets out the multi-factor community of interest test used to evaluate whether employees should be grouped into a single bargaining unit, with no single factor being determinative.
Warner-Lambert Co., 298 NLRB 993 (1990): Establishes that an Armour-Globe self-determination election is the proper mechanism for adding unrepresented employees to an existing unit, requiring both a community of interest and a distinct, identifiable segment.
Rush University Medical Center v. NLRB, 833 F.3d 202 (D.C. Cir. 2016): Holds that Section 103.30(c) of the Health Care Rule applies only to petitions for additional units, and that an Armour-Globe election does not create an additional unit but expands an existing one.
MV Transportation, Inc., 373 NLRB No. 8 (2023): Confirms that in self-determination and unit-clarification proceedings, the group seeking to join an existing unit need only share a community of interest with a minority of that unit, not all or a majority of it.